International and European company law 26 th of September 2017 – 3 rd of October 2017 Prof. Jochen BAUERREIS Attorney in France and Germany Certified specialist in international and EU law Certified specialist in arbitration law ABCI ALISTER Strasbourg (France) • Kehl (Germany)
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2017.09.04-International company law - BAUERREIS · 2017. 9. 4. · International and European company law 26th of September 2017 – 3rd of October 2017 ... Avocat & Rechtsanwalt
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International and European company law
26th of September 2017 – 3rd of October 2017
Prof. Jochen BAUERREIS Attorney in France and Germany
Certified specialist in international and EU law Certified specialist in arbitration law
– Treaty on the Functioning of the European Union (TFEU)
• Art. 49 TFEU (= art. 43 TEU)
• Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited
• Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
– Treaty on the Functioning of the European Union (TFEU)
• Art. 49 TFEU (= art. 43 TEU)
• Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
– Treaty on the Functioning of the European Union (TFEU)
• Art. 54 TFEU (= art. 48 TEU)
• Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
• "Companies or firms" means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
• The directives related to the cross-border operations
– The 10th directive 2005/56/EC of 26 october 2005 on the cross-border mergers of limited liability companies
– The 14th directive (project) related to the cross-border transfer of company seats
à European Parliament resolution of 2nd february 2012 with recommendations to the Commission on a 14th company law directive related to the cross-border transfer of company registered office.
– The perspective to take • Point of view of departure State • Point of view of host State
– Envisaged operations • The only real seat transfer • Change of tax domicile (natural person) • Cross-border mergers • Statutory seat transfer by the transformation
– From the point of view of the departure State (2008)
• Transfer of the real seat « Cartesio » (16 dec. 2008)
– From the Daily Mail law-case confirmation …
« On those grounds […] 4. As Community law now stands, Articles 43 EC and 48 EC are to be
interpreted as not precluding legislation of a Member State under which a company incorporated under the law of that Member State may not transfer its seat to another Member State whilst retaining its status as a company governed by the law of the Member State of incorporation.»
– From the point of view of the departure State (2008)
• Transfer of the real seat « Cartesio » (16 dec. 2008)
– … to the recognition (of principle) of the transfer of the statutory seat (with change of lex societatis)
« […] The power not to permit a company governed by its law to retain that status if the company intends to reorganise itself in another Member State by moving its seat to the territory of the latter […] cannot, in particular, justify the Member State of incorporation, by requiring the winding-up or liquidation of the company, in preventing that company from converting itself into a company governed by the law of the other Member State, to the extent that it is permitted under that law to do so. »(points 110 to 112)
– From the point of view of the departure State (2008)
• Transfer of the real seat « Cartesio » (16 dec. 2008)
– … to the recognition (of principle) of the transfer of the statutory seat (with change of lex societatis)
« Such a barrier to the actual conversion of such a company, without prior winding-up or liquidation, into a company governed by the law of the Member State to which it wishes to relocate constitutes a restriction on the freedom of establishment of the company concerned which, unless it serves overriding requirements in the public interest, is prohibited under Article 43 EC […]. (point 113) »
• Full transfer of seats (real and statutory) « Vale Építési » (16 july 2012)
– « Articles 49 TFEU and 54 TFEU must be interpreted as precluding national legislation which enables companies established under national law to convert, but does not allow, in a general manner, companies governed by the law of another Member State to convert to companies governed by national law by incorporating such a company »
• Full transfer of seats (real and statutory) « Vale Építési » (16 july 2012)
– « Articles 49 TFEU and 54 TFEU must be interpreted, in the context of cross-border company conversions, as meaning that the host Member State is entitled to determine the national law applicable to such operations and thus to apply the provisions of its national law on the conversion of national companies governing the incorporation and functioning of companies, such as the requirements relating to the drawing-up of lists of assets and liabilities and property inventories. However, the principles of equivalence and effectiveness, respectively, preclude the host Member State from….
• Full transfer of seats (real and statutory) « Vale Építési » (16 july 2012)
– - refusing, in relation to cross-border conversions, to record the company which has applied to convert as the ‘predecessor in law’, if such a record is made of the predecessor company in the commercial register for domestic conversions, and
– - refusing to take due account, when examining a company’s application for registration, of documents obtained from the authorities of the Member State of origin. »
• Transfer of seat : disassociation between statutory and real seat of a Community company
– European company : art 7, 64 and 66 of Regulation (CE) N°2157/2001
The registered office of an SE shall be located within the Community, in the same Member State as its head office. A Member State may in addition impose on SEs registered in its territory the obligation of locating their head office and their registered office in the same place.
• Transfer of seat : disassociation between statutory and real seat of a Community company
– European company : reform of art. 7 (art. 66)
Ernst & Young, Study on the operation and the impacts of the Statute for a European Company (SE), final report, 9 december 2009, p. 260 et ss.
• Organisation of a SE European group endowed with one single statutory seat (identical) and having differents head offices (according to national activity of each SE).
• Transfer of seat : disassociation between statutory and real seat of a Community company
– European company : reform of art. 7 (art. 66) ! Position of the European Commission
• « A number of respondents to the public consultation find the requirement that the registered office and the head office of an SE shall be located in the same Member State (or, in some Member States, in the same place) an obstacle in practice. … »
• « …Nevertheless, the Commission sees no reason at this stage to change the current rule. »
• Transfer of seat : disassociation between statutory and real seat of a Community company
– European private company :
« […] An SPE is not bound to establish its central administration or main establishment in the Member State in which the registered office is located. » (art. 7 Proposition of regulation)
• European company – Cross-border merger : (+) – Transfer of statutory seat / registered office : (+) – Power of disassociation between statutory and real seat : (-)
• European private company – Cross-border merger : (+) – Transfer of statutory seat / registered office : (+) – Power of disassociation between statutory and real seat : (+)
! The operation is covered by the freedom of establishment when a national legislation can not establish a difference of treatment between the operation of internal transformaton on the one hand and international transformation on the other hand «Vale Építési»
! The host State shall be competent to establish the domestic law and enforce standards (from its national law) to the internal transformation, subject to the respect with the principles
!Disassociation between statutory seat (registered office) and real seat (head office) in the Community companies (SP ans SPE)?
– National companies :
!Recognition of the only real seat transfer (from the point of view of the departure State) for the national societies by virtue of art. 54 TFEU application
VI. Validity of company mobility operations
Contact
Prof. Dr. Jochen BAUERREIS, M.A., D.E.A.
Lecturer at the University of Strasbourg (France) Lecturer at the University of Freiburg i. Br. (Germany)
Attorney in France and Germany Certified specialist in international and EU law
Certified specialist in arbitration law
ABCI ALISTER France (Strasbourg – Paris – Lyon – Montpellier) & Germany (Kehl)